Vasilinda v. Lozano

631 So. 2d 1082, 1994 WL 26993
CourtSupreme Court of Florida
DecidedFebruary 3, 1994
Docket81726
StatusPublished
Cited by20 cases

This text of 631 So. 2d 1082 (Vasilinda v. Lozano) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vasilinda v. Lozano, 631 So. 2d 1082, 1994 WL 26993 (Fla. 1994).

Opinion

631 So.2d 1082 (1994)

Michael VASILINDA, etc., Petitioner,
v.
William LOZANO, et al., Respondents.

No. 81726.

Supreme Court of Florida.

February 3, 1994.

*1083 Talbot D'Alemberte, Donald M. Middlebrooks, Thomas R. Julin and Edward M. Mullins of Steel, Hector and Davis, Miami, for petitioner.

Roy Black of Black & Furci, P.A., Miami, on behalf of William Lozano; and Robert A. Butterworth, Atty. Gen., Tallahassee, Katherine Fernandez Rundle, State Atty., and Penny H. Brill, Sp. Asst. Atty. Gen., Miami, on behalf of the State of FL, for respondents.

GRIMES, Justice.

We review Vasilinda v. Lozano, 618 So.2d 758 (Fla. 5th DCA 1993), in which the court certified as a matter of great public importance the following question:

*1084 WHEN THE VENUE OF A CRIMINAL CASE IS CHANGED AND THE CASE TRANSFERRED TO A CIRCUIT COURT IN A DIFFERENT APPELLATE DISTRICT THAN THE ORIGINATING COURT, AND THE CIRCUIT JUDGE WHO ENTERED THE ORDER IS ASSIGNED AS A JUDGE OF THE TRANSFEREE CIRCUIT, IS APPELLATE JURISDICTION FOR INTERLOCUTORY AND FINAL REVIEW VESTED IN THE DISTRICT COURT OF APPEAL WHICH HAS JURISDICTION OVER THE ORIGINATING CIRCUIT COURT OR IS JURISDICTION VESTED IN THE DISTRICT COURT WHICH HAS JURISDICTION OVER THE TRANSFEREE COURT IN WHICH THE TRIAL IS TO BE HELD, AND AT WHAT POINT IN TIME DOES APPELLATE JURISDICTION VEST?

Id. at 759. We have jurisdiction under article V, section 3(b)(4) of the Florida Constitution.

The circumstances prompting this petition arose at the beginning of the well-publicized criminal trial of William Lozano. Lozano, a Hispanic police officer, was convicted of two counts of manslaughter for the killing of two black citizens in Miami. On appeal the court reversed the convictions on the ground that Lozano's motion for change of venue should have been granted. The court reasoned that Lozano could not receive a fair trial in Miami at that time because of the pretrial publicity and the fear of violence should the jury find him not guilty. Lozano v. State, 584 So.2d 19 (Fla. 3d DCA 1991), review denied, 595 So.2d 558 (Fla. 1992).

On remand Judge Spencer granted Lozano's motion for change of venue and ordered that the trial of the case be transferred to the Ninth Judicial Circuit sitting in Orlando. This Court entered an order appointing Judge Spencer as a circuit judge of the Ninth Judicial Circuit for the purpose of trying the case. Judge Spencer then entered a supplemental order transferring the case to the Second Judicial Circuit sitting in Tallahassee. Pursuant to subsequent appellate proceedings, the case was ultimately returned for trial in the Ninth Judicial Circuit. See State v. Gary, 609 So.2d 1291 (Fla. 1992); State v. Lozano, 616 So.2d 73 (Fla. 1st DCA 1993).

In the meantime, Judge Spencer entered an order which had the effect of prohibiting the media from publicly identifying the jurors. The petitioner, a television journalist, filed a motion to modify the order with respect to its prohibition against photographing or televising jurors during the trial. Judge Spencer denied the petition on May 3, 1993. Pursuant to Florida Rule of Appellate Procedure 9.100(d), petitioner sought review of this order in the Third District Court of Appeal. Because of the prior order changing venue, that court transferred the case to the Fifth District Court of Appeal, which has appellate jurisdiction over the Ninth Judicial Circuit. In its opinion, the Fifth District Court of Appeal stated:

[W]e are unclear whether the transfer of venue and assignment of the trial judge vests appellate jurisdiction in this court for such orders and our uncertainty rests on several grounds; the orders to be reviewed are styled in the Eleventh Judicial Circuit, appear to be filed in the Eleventh Judicial Circuit, and were entered in Miami, Dade County, Florida in the Eleventh Circuit. The Supreme Court order assigning Judge W. Thomas Spencer of the Eleventh Circuit to hear, conduct, try and determine the case as a temporary judge of the Ninth Circuit does not specifically designate this court to hear any interlocutory orders in the cause. The change of venue was effectuated only to ensure the state and the defendant a fair and impartial jury trial which does not impact on appellate jurisdiction.

Vasilinda, 618 So.2d at 759 (footnote omitted). In view of its uncertainty, the court certified the question quoted above. However, because the trial was scheduled to commence on May 10, 1993, the court went on to rule against the petitioner on the basis that there was an insufficient record upon which it could determine whether the challenged order was erroneous.

The trial against Lozano proceeded as scheduled, and he was acquitted. The petitioner believes that the Third, rather than the Fifth, District Court of Appeal had appellate *1085 jurisdiction.[1] However, he is more interested in the merits of his petition and argues that Judge Spencer should have allowed voir dire to be "covered by cameras but the prospective jurors' pictures not be shown until at least there was the opportunity for the particularized inquiry of individual jurors" which was contemplated by the case of In re Petition of Post-Newsweek Stations, Florida, Inc., 370 So.2d 764, 779 (Fla. 1979).

The circumstances under which the challenged order was entered appear to be unique, and the concerns of the parties with respect to this case are moot. Therefore, we have concluded that it is unnecessary to pass on the merits of the petition, particularly since it is not the issue that provides this Court with jurisdiction. We will, however, endeavor to answer the certified question.

It seems to be a generally accepted principle that when venue is transferred to another jurisdiction and the case is concluded in the new jurisdiction, review of the final order or judgment is properly commenced in the appellate court which has jurisdiction over the transferee court. Cole v. State, 280 So.2d 44 (Fla. 4th DCA 1973); Resnick v. State, 274 So.2d 589 (Fla. 2d DCA 1973). With respect to review of interlocutory orders, the cases are in disarray.

In University Federal Savings & Loan Association v. Lightbourn, 201 So.2d 568 (Fla. 4th DCA 1967), a Broward County circuit judge entered an order changing venue to Dade County and at the same time denied the defendant's motion to vacate a default judgment. The defendant filed a petition for certiorari directed to the denial of its motion to vacate in the Fourth District Court of Appeal, which has jurisdiction over Broward County. That court held that it had no jurisdiction because venue of the case had been transferred to Dade County. Thus, the court transferred the petition for certiorari to the Third District Court of Appeal, which has jurisdiction over Dade County. Id. at 570. Accord Palm Beach County v. Rose, 337 So.2d 985 (Fla. 4th DCA 1976).

The Third District Court of Appeal took a different approach in Raymond, James & Associates, Inc. v. Wieneke, 479 So.2d 752 (Fla. 3d DCA 1985). In that case, a Dade County circuit judge entered an order changing venue to Pinellas County and at the same time or shortly thereafter denied the defendant's motion to compel arbitration. When the defendant appealed to the Third District Court of Appeal, the plaintiff moved to dismiss because venue had been changed before the notice of appeal was filed. The Third District Court of Appeal differed with University Federal

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Bluebook (online)
631 So. 2d 1082, 1994 WL 26993, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vasilinda-v-lozano-fla-1994.